Workpac Pty Ltd

[2020] FWCA 2034

[2020] FWCA 2034

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Workpac Pty Ltd
(AG2020/932)

WORKPAC PTY LIMITED AND CFMEU ACT CAPITAL METRO LIGHT RAIL GREENFIELDS PROJECT AGREEMENT 2016

Australian Capital Territory
DEPUTY PRESIDENT KOVACIC	CANBERRA, 20 APRIL 2020

Application for termination of the WorkPac Pty Limited and CFMEU ACT Capital Metro Light Rail Greenfields Project Agreement 2016.

[1] WorkPac Pty Ltd (the Applicant) made an application under s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the WorkPac Pty Limited and CFMEU ACT Capital Metro Light Rail Greenfields Project Agreement 2016 (the Agreement) 1. The application was received by the Fair Work Commission (the Commission) on 1 April 2020 and was accompanied by a Statutory Declaration by Ms Elizabeth Rakitovszky, the Applicant’s National Industrial Relations Manager.

[2] The Agreement has a nominal expiry date of 31 March 2020.

[3] The application was made in circumstances where the Applicant is currently excluded from being awarded federally funded construction work as the Agreement has been assessed by the Australian Building and Construction Commission (ABCC) as not compliant with the Australian Government’s Code for the Tendering and Performance of Building Work 2016 (the Building Code).

[4] Ms Rakitovszky stated in her statutory declaration that no employees were covered by the Agreement as the project the Agreement applied to had been completed. Ms Rakitovszky also stated that the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), with whom the Agreement had been made and which was covered by the Agreement, had advised that it would not object to the application. The CFMMEU emailed the Commission on 16 April 2020 confirming this to be the case.

The statutory framework

[5] The relevant provisions of the Act are as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration of the issues

[6] With regard to the requirements of s.225, as mentioned above the Agreement has passed its nominal expiry date. As the Applicant is the employer covered by the Agreement it is entitled to make an application to the Commission for termination of the Agreement.

[7] I turn now to deal with the considerations set out in s.226 of the Act.

s.226(a) – Public Interest

[8] Ms Rakitovszky declared inter alia that it was not contrary to the public interest to terminate the Agreement as it was a project specific agreement, there were no employees currently engaged under the Agreement nor would there be as the project had been completed.

[9] As such, I do not consider that the public interest is enlivened in this case. Accordingly, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

s.226(b)(i) – the views of the employees, each employer, and each employee organisation (if any), covered by the agreement and (ii) – the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[10] The Applicant provided the Commission with a copy of email correspondence it had received from the ABCC advising that certain clauses in the Agreement were not compliant with the requirements of section 11 of the Building Code. Against that background, Ms Rakitovszky stated in her statutory declaration that if the Agreement were terminated the Applicant would be able to be awarded federally funded work.

[11] As previously noted, the CFMMEU does not object to the termination of the Agreement and there are no employees currently covered under the Agreement.

[12] Based on the above, termination of the Agreement will have a potentially positive impact on the employer and will not affect any employees. This supports a finding that the Agreement should be terminated.

Summary

[13] Having regard to the requirements of s.226 of the Act and based on the material that is before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances. As such, consistent with s.226 of the Act the Commission must terminate the Agreement.

Conclusion

[14] Pursuant to s.226 of the Act, the Agreement is terminated. The termination of the Agreement shall operate from the date of this Decision. An Order to that effect will be issued in conjunction with this Decision.

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